Burma- a constitutional crisis?

Burma’s fragile democratisation process may be about to hit its next major stumbling block: a single word in the parliamentary oath.

Aung San Suu Kyi’s National League for Democracy (NLD), which dominated recent by-elections, has announced that its newly-elected MPs will not be swearing in at Parliament’s opening session on Monday due to the on-going controversy over the oath requiring them to “abide by and protect the Constitution”.

Their objection is wholly understandable. The 2008 constitution was drawn up by the military in a rigged process that involved imprisoning outspoken critics and was adopted through a sham referendum marred by violence, intimidation and fraud (including throughout the Irrawaddy Delta region just weeks after it had been devastated by Cyclone Nargis).

The document itself serves to enshrine military rule by reserving a quarter of parliamentary seats and a number of key posts- including the Ministers and Deputy Ministers of defence, security, home affairs and border affairs- for military personal. It also places the military beyond the control of the executive and the cabinet, gives it broad powers in the selection of the president and two vice-presidents, and creates a wide range of exceptions to citizens’ fundamental rights.

In its pursuit of a democratic Burma the NLD has no other option than to challenge the constitution, or at least aspects of it, yet under the current parliamentary oath elected representatives would automatically be violating their commitments were they to do so.

Obliging MPs to ’protect’ the constitution would also significantly hinder their ability to effectively engage with Burma’s ethnic minority groups. The Kachin Independence Organisation for instance, has explicitly refused to engage in any negotiations based on the constitution, a perfectly reasonable stance given the failure the incorporate any aspects of the 1947 Panglong Agreement, the document’s explicit prohibition of “any act which is to the detriment of national solidarity”, and the evidential dangers posed by an army effectively free from government control. Were NLD representatives to commit to protecting the constitution they would, officially at least, be prevented from pushing for changes that could allow resolution of the conflicts in Kachin State and elsewhere.

In a show of the party’s determination to negotiate, the NLD has proposed changing the word ‘protect’ to ‘respect’, so that representatives can take the oath, then debate the constitution whilst still acting within it. However, the government has refused the alteration, stating that the request came to late for this session.

What remains to be seen is whether this is genuinely an bureaucratic glitch that will be imminently resolved or the first sign of the government hitting the breaks on the reform process. For now Suu Kyi is publicly distancing the party from talk of ‘boycotting’ the Parliament, whilst incoming NLD MP Ohn Kyaing has expressed his belief that the issue will be ironed out quickly. Given the military’s previous form however, others may be far less confident…. 

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